P. v. Hernandez

Filed 2/8/07  P. v. Hernandez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

            APPEAL from a judgment of the Superior Court of Kings County.  Louis F. Bissig, Judge.

            Eleanor M. Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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STATEMENT OF THE CASE

            On November 22, 2005, the Kings County District Attorney filed an information in superior court charging appellant as follows:

            Count I--unlawful sale of a controlled substance (Health & Saf. Code, §  11379, subd. (a));

            Count II--unlawful possession of a controlled substance for purpose of sale (Health & Saf. Code, §  11378);

            Count III--unlawful possession of a controlled substance (Health & Saf. Code, §  11377, subd. (a));

            Count IV--misdemeanor false identification (Pen. Code, §  148.9, subd. (a)); Count V--misdemeanor fighting in a public place (Pen. Code, §  415, subd. (1));   Count VI--misdemeanor being under the influence in a public place (Pen. Code, §  647, subd. (f)); and

            Count VII--misdemeanor possession of not more than 28.5 grams of marijuana (Health & Saf. Code, §  11357, subd. (b)). 

            As to counts I-III, the district attorney specially alleged appellant had served a prior prison term (Pen. Code, §  667.5, subd. (b)). 

            On November 23, 2005, appellant was arraigned, pleaded not guilty to the substantive counts, denied the special allegations, and requested a jury trial. 

            On March 3, 2006, appellant entered into a plea agreement with the prosecution.  Appellant agreed to plead guilty to count III (Health & Saf. Code, §  11377, subd. (a)), admitted a prior prison term, and stipulated to ineligibility under Proposition 36.  The prosecution agreed to dismiss the remaining substantive counts and special allegations and agreed not to file an additional felony charge arising from appellant's failure to appear for a scheduled court hearing on December 16, 2005. 

            On May 8, 2006, the court denied appellant probation and sentenced him to a total term of four years in state prison.  The court imposed the upper term of three years on count III and a consecutive one-year term for the prior prison term enhancement (Pen. Code, §  667.5, subd. (b)).  The court imposed an $800 restitution fine (Pen. Code, §  1202.4, subd. (b)) and imposed and suspended a second such fine pending successful completion of parole (Pen. Code, §  1202.45).  The court also ordered appellant to pay a $165 laboratory fee (Health & Saf. Code, §  11372.5, subd. (a)) and a $20 court security fee (Pen. Code, §  1465.8).  The court ordered appellant to submit to DNA testing/profiling and to provide samples of bodily fluids and prints (Pen. Code, §§  296, 298.1, subd. (b)(1), (2)).  The court also ordered appellant to register as a narcotics offender (Health & Saf. Code, §  11590). 

            On July 10, 2006, appellant filed a notice of appeal based on the sentence or other matters occurring after the plea and challenging the validity of his plea or admission. 

            On July 12, 2006, the court granted appellant's request for a certificate of probable cause.  

STATEMENT OF FACTS

            The following facts are taken from the probation officer's report filed March 30, 2006:

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